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  • AMENDMENT OF THE ACT ON THE RESIDENCE OF FOREIGN NATIONALS IN THE CZECH REPUBLIC AND CHANGES TO THE EMPLOYMENT REPORTING OBLIGATIONS

    10. 10. 2019

    On 31 July 2019, an amendment to Act No. 326/1999 Coll., on the Residence of Foreign Nationals in the Czech Republic and on Modifications to Some Other Acts as amended (hereinafter referred to as the “ARF” or the “Act on the Residence of Foreigners”) came into effect. This is another modification of an already quite confusing law on the residence of foreigners.

    Hence an overview of the most important changes for your convenience.

    I. CHANGING YOUR EMPLOYER

    The amendment brings about several changes. Of these, however, the most important is the change in the procedure for foreigners intending to change their employer or their job title or position.

    Until now, the change of employer or position of an employee who is a employee-card holder has been subject to a prior approval of the Ministry of the Interior of the Czech Republic. As of now, this circumstance will only be notified to the Ministry of the Interior of the Czech Republic no later than 30 days prior to the planned change. The standard administrative procedure will no longer be required. It will be sufficient for the foreigners to submit all documents justifying such a change, and having examined it, the Ministry of the Interior of the Czech Republic shall notify the foreigner and their employer of the fulfillment of the conditions. However, it is necessary to comply with the deadline of 30 days, because during this period the Ministry of the Interior checks the conditions for changing one´s employer.

    A Notice of a Change of Employer, Job Title or Position may be made by a foreigner who has been a holder of an employee card for at least 6 months from its issue. There are the following exceptions from the above rule which allow for such a change to be made earlier:

    a) in case of termination of employment of a foreigner by notice for reasons stated in Section 52 a) to e) of the Labor Code,

    b) in case of termination of employment of a foreigner by an agreement for reasons stated in Section 52 a) to e) of the Labor,

    c) in case of immediate termination of employment of a foreigner under Section 56 of the Labor Code,

    d) termination of employment by the employer during the trial period; and

    e) in cases when the foreigner has arrived on the basis of a government-approved program that allows a change of employer, job title or position prior to the lapse of the 6-months period.

    Exceptions under a) to d) of this article, however, must be proven by the foreigner together with the Notice; for instance, to the Notice on the Change of Employer, Job Title or Position a document must be attached proving a particular circumstance, such as immediate termination of employment by a foreigner on the grounds that the employer failed to pay wages (Section 56 (1) (b) of the Labor Code).

    However, the Notice on the Change of Employer, Job Title or Position cannot be filed by a foreigner whose employee-card has expired.

    When filing the Notice on the Change of Employer, Job Title or Position, a temporary work agency cannot act as a new employer of a foreigner as of 31 July 2019.

    The Notice on the Change of Employer, Job Title or Position must be made on a designated official form and can be done in person, by mail, electronically via data box or by e-mail with a guaranteed electronic signature.

    The Notice on the Change of Employer, Job Title or Position must be accompanied by the same documents that are required to be attached to the application for an employee card, which are namely the following:

    i) a document proving that the foreigner's existing employment lasts, or a document proving on which date this employment ended,

    ii) an employment contract, a work agreement or an agreement to agree showing that it is concluded for the post mentioned in the Notice,

    iii) a statement by the prospective employer that the applicant has the necessary professional competence to perform the required job;

    However, the new job must be kept in the central register of vacancies available to employee-card holders. These records are kept by the regional branches of the Labor Office.

    It needs to be emphasized that all documents mentioned under (i), (ii) and (iii), including a duly completed official form, which are to be attached to the Notice on the Change of Employer, Job Title or Position, must be submitted simultaneously, i.e. together with the Notice. If this does not happen, the Ministry of the Interior of the Czech Republic is under no obligation to notify the foreigner to that effect, as the application is deemed as not having been filed.

    Although this is not a substantial improvement, it should still make the procedure of changing one´s employer simpler. This has been confirmed by the statistics of the Ministry of the Interior for August 2019. However, whether it is indeed the case will be only ascertained over time, depending on whether the Ministry of the Interior, and namely the Department of Asylum and Migration Policy will indeed be able to meet the 30-day statutory deadline for issuing a letter on fulfillment of the conditions of the Notice on the Change of Employer, Job Title or Position, i.e. without delays which are common when reviewing applications for residence in the Czech Republic.

    II. OTHER CHANGES

    In addition however, the amendment to the Act on the Residence of Foreigners provides for other novelties. Although its original objective was to transpose EU directives, the amendment contains many other changes. These include:

    - additional situations where a visa for tolerated stay may be applied for to include cases where the foreigner is a minor child who has applied for a permanent residence permit for the purpose of family reunification with a person, who is also a foreigner residing in the territory of the Czech Republic and holding a permanent residence permit, and the application for a permanent residence permit of the minor was refused, but the minor filed a legal action against the refusal together with a motion for suspensive effect of the action. However, if the court does not grant the suspensive effect to the action, or if the court's judgment on the action becomes final, the Ministry of the Interior of the Czech Republic shall revoke the validity of the visa for tolerated stay;

    - changes in long-term residence for the purpose of study; hereby the possibilities of obtaining long-term residence are extended to include also foreigners studying at primary and secondary schools or at conservatories, outside an exchange program or practical training program for a fee. In this context, the accompanying documents, which the foreigner is obliged to submit together with the application to the Ministry of the Interior of the Czech Republic are different as well;

    - extended grounds for which it is possible to issue a decision on the obligation to leave the territory or territories of the EU Member States pursuant to the provisions of Section 50a of the ARF;

    - atd.

    We remain at your full disposal should you need more details on the effects of the amended Act No. 326/1999 Coll., on the Residence of Foreign Nationals in the Czech Republic on the rights of foreigners, possibilities of their protection or regarding a specific situation in the Czech Republic.

    Mgr. Karolína Adámková

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